Grady v. Borden Brick & Tile Co.

CoNNOR, J. By their deed dated 28 January, 1911, and duly recorded in Wayne County on 31 January, 1911,-Daniel Grady and his wife conveyed to the Virginia Lumber and Box Company, its successors or assigns, not only the trees on the land described therein, but also certain rights and privileges with respect to said land, which are fully set out therein. The consideration for said conveyance was $700. It does not appear from the recitals in the deed that this consideration was paid solely for the conveyance of the trees and the rights and privileges necessary for the cutting and removal of said trees from the land. It was paid not only for the conveyance of the trees and said rights and privileges, but also for the trees and all the rights and privileges set out in the deed with respect to the land on which the trees were standing and growing. The language used by the grantors in said deed is so plain and their intention so clearly expressed, that there is no room for construction. Hinton v. Vinson, 180 N. C., 393, 108 S. E., 897. The rights and privileges conveyed by the deed, are (1) to construct over and across the land described in said deed, roads, tramways and railroads, and to use the same for the purpose of removing the trees conveyed by the deed, as well as other trees owned by the grantee, its successors or assigns, on other lands; and (2) to locate on said land a right-of-way, sixty feet wide, for a main railroad as well as any branch road planned by the grantee, its successors or assigns, at the date of the deed or thereafter and to use said right-of-way, permanently, for said purpose. Hughes v. R. R., 119 N. C., 688, 23 S. E., 717. The right to construct 516 roads, tramways and railroads over and across said land, for tbe purpose of removing trees from said land, or other lands, expired, necessarily, when the right to cut and remove said trees expired. The right, however, to use the right-of-way to be located by the grantee, its successors or assigns, for a main railroad, or a branch road, is permanent. This latter right was conveyed by the Virginia Lumber and Box Company to the defendant, Borden Brick and Tile Company. The defendant is now by virtue of the conveyance to it by the Virginia Lumber and Box Company, the owner of all the rights and privileges with respect to the land owned by plaintiffs, which were conveyed by Daniel Grady and wife to the Virginia Lumber and Box Company and owned by said company at the date of its deed to the defendant. These include the right to locate and use permanently for a main railroad or a branch road a right-of-way over and across the land of the plaintiff. The fact that neither the Virginia Lumber and Box Company nor the Borden Brick and Tile Company is now or ever has been authorized to engage in or carry on the business of a common carrier by railroad, under the law of this State, is immaterial. A corporation organized under the laws of this State, with no power in its charter or otherwise to engage in or carry on the business of a common carrier, has no capacity to take and use an easement for that purpose. Beasley v. R. R., 145 N. C., 272, 59 S. E., 60. It does not follow from this principle, however, that such corporation may not acquire by deed a right-of-way for the purpose of constructing and maintaining thereon a railroad for its private use. In the instant case, it is apparent that a railroad operated by it in the conduct of its own business, is a convenience, if not a necessity, for the defendant. We find no error in the judgment. It is Affirmed.